Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005968

First-tier Tribunal No: HU/01611/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22 April 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
and
DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Appellant
and

DJEDJE RAIMUNDO CAMPARA GOMES
Respondent

Representation:
For the Appellant: Mr S Walker, Senior Presenting Officer
For the Respondent: Ms A Kogulathas of counsel, instructed by Nuevo Lawyers

Heard at Field House on 2 April 2025

DECISION AND REASONS
1. The issue before the Upper Tribunal in this case is whether the First-tier Tribunal made a legal error when it allowed Mr Gomes’ appeal against the Secretary of State’s decision to deport him from the United Kingdom. For the reasons which follow, we have decided that the First-tier Tribunal made no such error, and that its decision to allow the appeal must therefore stand.

Background
2. To avoid confusion, we will refer to the parties as they were before the First-tier Tribunal: Mr Gomes as the appellant and the Secretary of State as the respondent.
3. The appellant is a Portuguese citizen. He is 35 years old. He entered the United Kingdom in 2013 and was granted leave to remain under the domestic Immigration Rules from 31 July 2019 to 1 August 2024.
4. The appellant committed criminal offences in September and October 2019. He pleaded guilty to the earlier offences and not guilty to the later offences. He was convicted of all offences following a trial in March 2022. On 14 March 2022, he was sentenced to a total of five years’ imprisonment by HHJ Mooncey.
5. The respondent duly commenced deportation proceedings and, on 12 September 2023 she made a deportation order against him. The respondent stated that she was satisfied that the appellant’s deportation was justified on grounds of public policy and that he fell to be deported under the saved provisions of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”).
The Appeal to the First-tier Tribunal
6. The appellant was entitled to appeal against that decision, and he did so. His appeal was heard by the First-tier Tribunal in Birmingham on 25 November 2024. The appellant was represented by Ms Bachu of counsel. The respondent was represented by a Presenting Officer (not Mr Walker).
7. The judge heard oral evidence from the appellant and his brother. He heard submissions from the representatives before reserving his decision, which he issued four days after the hearing.
8. We need not rehearse the reasons given by the judge for allowing the appellant’s appeal. His decision spans fifteen carefully structured pages. It suffices for present purposes to make reference to the following aspects of the decision.
9. Having set out the evidence and the issues, the judge directed himself correctly on the legal framework in a case of this nature. He made reference to the Citizens Directive and to the EEA Regulations. He explained that it was common ground that “the European Regime” continued to apply, and he made reference to the legal tests for deportation under that regime.
10. There was an issue between the parties over the level of protection which the appellant had acquired against deportation. The judge considered that issue with care, taking proper account of the evidence concerning the appellant’s economic activity from 2013 onwards. Having done so, the judge resolved this issue resolved that issue in favour of the respondent, and concluded at [48] that the appellant was not entitled to anything more than the basic level of protection against deportation.
11. The judge then proceeded, at [49]-[68] of his decision, to consider whether the appellant represented a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom (regulation 27(5)(c) of the EEA Regulations refers). Having taken account of all of the evidence before him, the judge concluded that the appellant did not present such a threat.
12. At [69], the judge stated (correctly) that his conclusion that the appellant did not pose a present threat to the United Kingdom was determinative of the appeal, and he did not need to consider the question of whether it would be proportionate to deport the appellant. He therefore allowed the appeal, although he warned the appellant that any further offending might lead to a different outcome in the future.
The Appeal to the Upper Tribunal
13. The Secretary of State sought permission to appeal. There was said to be only one ground of appeal, which was that the judge had failed to give adequate reasons for allowing the appeal. On analysis, however, the following separate points emerge from the grounds:
(i) The judge had failed to take account of material matters, including the fact that the appellant had committed a total of five offences and that he continued to deny responsibility for the October 2019 offences.
(ii) The appellant has submitted only parts of an OASys (Offender Assessment System) report. The appellant was ‘seeking to paint an incomplete picture of his claimed rehabilitation’, and the judge had ‘failed to give an adequate assessment’ of those omissions.
(iii) The judge had failed to have regard to the fact that the appellant had been released from prison in July 2024, and there was insufficient evidence on which to base a conclusion that he had reformed. That was particularly so because the appellant’s offending had been motivated by financial concerns and a negative peer group and there was no evidence that either matter had been addressed.
(iv) The judge had failed to consider ‘the consequences of reoffending in line with Kamki [2017] EWCA Civ 1715’1, and the consequences of reoffending were serious.
14. Permission to appeal was refused by the First-tier Tribunal but granted, on renewal, by an Upper Tribunal Judge.
15. We had before us a consolidated bundle of documents from the appellant’s solicitors and a skeleton argument from Ms Bachu of counsel. We heard brief oral submissions from Mr Walker in amplification of the grounds of appeal.
16. Mr Walker began by addressing us on the incomplete OASys report. He said that the Home Office would usually provide a complete and up to date OASys report in an appeal of this nature and it was ‘concerning’ that it had been left to the appellant to do so. He noted that the appellant had now explained why the report was incomplete, and had provided the missing pages. There was nothing in those pages, Mr Walker said, which could have caused the judge to come to a different conclusion. Mr Walker accepted that the judge had taken account of the fact that the report was incomplete and that nothing more could have been expected of him.
17. Having noted that Mr Walker did not seek to persuade us that the second ground of appeal disclosed an error of law on the part of the judge, we asked him whether he wished to develop any of the remaining grounds. He said that he was content to rely on the written grounds, which he said were ‘possibly misconceived’, but we pressed him to make submissions on those grounds.
18. Mr Walker did not seek to pursue the suggestion that the judge had left material matters out of account. He accepted that the judge was aware that the appellant had been released from detention some four months before the hearing. He noted that the appellant’s cousin had left the country and that the judge had found that the appellant had found work and stepped away from the negative peer group (including his cousin) with whom he had offended in 2019. Mr Walker accepted that the judge had taken account of the fact that the appellant continued to deny responsibility for the October 2019 offences.
19. We asked Mr Walker to direct us to the principle in Kamki v SSHD which the judge was said to have overlooked or failed to apply. He did not seek to submit that there was any point of principle to be extracted from that case.
20. Having heard from Mr Walker, we indicated that we did not need to call on Ms Kogulathas to respond to his submissions. We announced that the Secretary of State’s appeal would be dismissed for reasons which would follow in writing.
Analysis
21. We need say very little about the legal framework which applies in cases of this nature. It was analysed in some detail by the judge below. As we have recorded, the judge focussed on the risk presented by the appellant in the future. That was the correct approach in a case of this nature: Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245; [2016] 2 CMLR 3, at [17]. The judge concluded that the appellant did not pose a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom. As a matter of law, that conclusion was determinative of the appeal: MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC); [2016] Imm AR 114, at [29](b). It is for that reason that the Secretary of State’s grounds of appeal sought to target the judge’s conclusion on that question.
22. Mr Walker did not feel able to pursue the submission that the judge left material matters out of account in reaching the conclusion that the appellant did not pose a present risk. That was not a lazy or unprincipled stance for Mr Walker to take. It is clear from the judge’s decision that he took careful account of all relevant matters. He was well aware that the OASys report was incomplete. He recounted at [43] of his decision that the Presenting Officer had cross-examined the appellant about the missing pages. The judge noted that the appellant thought that the full report had been provided and that the appellant accepted that he had told the Probation Officer who produced that report that he had not committed the October 2019 offences. The judge refused to speculate on what the missing pages might contain but he noted that the Probation Service’s ultimate conclusion was that the appellant was a low risk.
23. The judge returned to the incomplete OASYS report at [57]-[59]. He took account of the appellant’s admission that it contained ‘incriminating information’ and he noted the points made by the Presenting Officer about the lack of a full report. He also took account of the decision of the Court of Appeal in MA (Pakistan) v Secretary of State for the Home Department [2014] EWCA Civ 163. That decision had been relied upon by the Presenting Officer in inviting the judge to conclude that he should depart from the Probation Service’s conclusion that the appellant presented a low risk of reoffending. The judge took account of all of these matters as part of his consideration of the risk of reoffending. Mr Walker said bluntly that there was nothing more that the judge could have done. We agree. The fact that the report was incomplete did not mean that the judge was bound to reject its conclusions. What he was required to do was to consider that the report was incomplete and to weigh that fact along with the rest of the evidence in deciding what risk, if any, the appellant presented. That was exactly what the judge did and it is fallacious to suggest that he did not take account of the incomplete nature of the report, or that he gave inadequate reasons for his conclusion on the point.
24. Mr Walker submitted frankly that other points made in the grounds were ‘possibly misconceived’. We agree, and we had reached that provisional view when we read the papers. The judge was clearly aware that the appellant had committed five offences in September and October 2019, and that he denied responsibility for the later offences. He took careful account of the latter fact before coming to the conclusion that the appellant nevertheless represented no present threat of offending, as is clear from [68]. The judge specifically stated that the ongoing denial was ‘something which weighs against him’ in the risk assessment he was undertaking. We do not understand how it came to be submitted in writing by the Secretary of State that the point had been overlooked by the judge – it was clearly mentioned, repeatedly, and the judge stated that he took ‘particular’ account of it.
25. We were equally surprised by the Secretary of State’s suggestion that the judge had overlooked the fact that the appellant had been released in July 2024. The decision contains a number of references to the fact that the appellant was released from prison at that point. The sub-heading to [44] of the judge’s decision is “Being released from custody in July 2024”. Another such reference is at [67], which began with the following sentence:
Finally, I also take into account that prior to leaving prison in summer 2024, that the appellant already started to put in place what he wanted to do with his life.
26. The appellant’s date of release, and the fact that he had only had a limited time to show that he had reformed before the hearing in the FtT, was clearly borne in mind by the judge. We note that the judge not only took account of the passage of time; he also took into account the possibility that the appellant’s behaviour was influenced by a desire to avoid deportation: [54]. Ultimately, however, the judge rejected the Presenting Officer’s submission in that regard because he attached weight to the appellant’s conduct in prison and his achievements in securing not only employment but also a place at university on release.
27. That leads us to the point in the grounds of appeal that the appellant’s offending was financially motivated, and that ‘there is no finding that his financial situation has improved such that he will not be motivated to reoffend in the future’. That might be so, but the judge did make an express finding that the appellant had found work shortly after leaving prison [44]; that he had established a family life with his children since release [45]; and that he had ceased contact with the peer group that had influenced his behaviour in 2019: [62]. The judge concluded, having considered the evidence as a whole, that there was evidence of ‘genuine reform and change’.
Kamki v Secretary of State for the Home Department
28. The Secretary of State contended in the grounds of appeal that the judge had failed to consider the consequences of reoffending ‘in line with Kamki’. This ground of appeal is frequently advanced by the Secretary of State in deportation cases. Mr Walker did not seek to argue the point, and was correct not to do so. As he recognised, Kamki v SSHD does not establish a principle that judges are required in all cases to consider the consequences of potential reoffending even when they have concluded, as this judge did, that there is a low risk of reoffending.
29. We note that Kamki v SSHD is not a reported decision and that it has never been cited by the Court of Appeal as establishing the principle on which the Secretary of State seeks to rely. It was cited in the skeleton arguments before the Court of Appeal in Secretary of State for the Home Department v George [2024] EWCA Civ 1192; [2025] 1 WLR 1025 but neither Elisabeth Laing nor Underhill LJJ, both of whom gave reasoned judgments, made any reference to it.
30. Mr Kamki had committed sexual offences: one of rape and two of sexual assault. He assaulted and then raped his friend’s girlfriend whilst she was in a comatose state after drinking too much at a party. He maintained his innocence at trial, stating that the sex was consensual, but he was disbelieved by the jury. He undertook no rehabilitative work in prison. He continued to maintain his innocence after trial and during the deportation proceedings which came before the First-tier Tribunal in 2014. The FtT had before it an OASys report which was prepared at the time that the appellant was to be released on licence. At [10]-[11] of his judgment, Sales LJ (as he then was) summarised the contents of that report in the following way:
[10] As the time for the appellant's release on licence approached, the National Offender Management Service carried out a risk assessment in relation to him which was set out in a report ("the OASys report"). In summary, the OASys report was to the effect that there was a low probability that the appellant would re-offend (although it was not a negligible possibility and there were risk factors which tended to increase the probability of this happening), but the harm if he did again prey on a vulnerable female in a similar way would be very serious. Having regard to the combination of the two dimensions of risk evaluated in the OASys report (i.e. probability of reoffending and magnitude of harm if reoffending occurred), the overall assessment was that there was a high risk of harm to vulnerable females if the appellant was released into the community.
[11] The OASys report referred to the appellant's good character before his offences and his good behaviour in prison. It also set out various measures which it was proposed should be put in place if he were released on licence to try to limit the risk which he would pose to others. According to the predictor scores in the report, the appellant fell into the low risk category if released (although it was assessed that there was still a 13% probability in his case of proven reoffending in 2 years). A qualitative review of a range of relevant factors, assessed in the light of the refusal of the appellant to acknowledge his guilt and the fact that as a result relevant sex offender treatment courses had not been undertaken by him, indicated that several were linked both to the probability of reoffending by the appellant and to the risk of serious harm occurring if he did. The factors having this effect were those in respect of his relationships, his lifestyle, misuse of alcohol by him, his thinking and behaviour and his attitudes to the treatment of others. It was noted that the offending involved a significant breach of trust given that the victim was the partner of the appellant's best friend. The OASys report stated, "Young females are at risk of further offences from Mr Kamki", especially if they were "alone and vulnerable due to alcohol or possibly drug misuse."
31. The Secretary of State concluded in reliance on that assessment that although there was a low probability of re-offending by the appellant, there was a high risk of harm to young females. It was that risk which was said to justify the decision to deport the appellant.
32. The First-tier Tribunal dismissed Mr Kamki’s appeal, finding that the test for deportation under the Immigration (European Economic Area) Regulations 2006 was satisfied. The Upper Tribunal dismissed the appellant’s appeal because it did not accept that there was a legal error in the decision of the FtT. The appellant appealed to the Court of Appeal, contending once more that the decision of the FtT was vitiated by legal error.
33. There were three grounds of appeal to the Court of Appeal. We need not mention the first or the third. The second ground was that the FtT had misunderstood the OASys report and had failed to identify cogent reasons for departing from its assessment that there was a low risk of reoffending. Sales LJ, with whom Newey LJ agreed, dealt with that ground in four short paragraphs. He rejected the appellant’s submission that the FtT had become muddled and had incorrectly understood the OASys report. He did so for the reasons given in [35]:
In my view, this criticism of the FTT's decision is not justified. In the context of analysing the OASys report the meaning of the FTT is clear: the offender manager's view as set out in the report was in line with that of the judge, namely that the probability of the appellant re-offending is low ("the appellant is at low risk of offending"), but was also that the overall risk in relation to the commission of similar offences against vulnerable young females was high ("the risk in relation to committing similar offences [etc]"), in the sense of taking the probability of re-offending in combination with the serious harmful effects if it occurred. The FTT judge uses different language to reflect the two different senses of "risk"; it is not plausible to read the decision in an incoherent way rather than so that it makes coherent sense; and reading it in this way corresponds with what the OASys report itself said, as the FTT judge had himself set out at [16] and [56] of his decision. As noted above, Mr Knafler accepts that such a combined approach to evaluation of risk under regulation 21 is legitimate.
34. The Court of Appeal did not purport in that paragraph or elsewhere to be establishing a principle that it was necessary in all deportation cases for an appellate tribunal to consider not only the risk of reoffending but also the seriousness of the consequences in the event of such reoffending. That was the approach which had been taken by the National Offender Management Service, the Secretary of State and the FtT in that case, and the Court of Appeal held that it was a legitimate approach on those particular facts.
35. The FtT in the instant case concluded, having taken account of all relevant evidence, that the appellant did not present a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom. In reaching that conclusion, the judge took account of the contents of the ‘extremely positive’ comments made in the ‘Progress in Workshops’ report issued by HM Prison and Probation Service: [42]. The judge found that the report chimed with the remaining evidence before him, which showed that the appellant had used his time in prison as a ‘catalyst for real change’ and had embarked on a career, started a family and enrolled on a programme of education. The FtT treated that conclusion as dispositive of the appeal. It was correct to do so, and Kamki v SSHD did not require it to supplement its reasoning by considering the consequences of future offending despite its conclusion that any such reoffending was unlikely.
36. This ground of appeal therefore discloses no error on the part of the judge.
Conclusions
37. This was, in summary, a judge who evidently understood the issues which he was to consider and who took great care to evaluate the evidence before him. He took account of all of the points made by the Presenting Officer but he preferred the evidence given by the appellant, supported as it was by evidence which showed that he was working, enjoying a family life with his children, and assessed by the Probation Service to be a low risk of re-offending.
38. This is not a case in which we need to make any reference to the principles of appellate restraint, the importance of which the Court of Appeal has underlined on a number of occasions before and after Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48. The decision of the First-tier Tribunal was more than adequately reasoned. The losing party is clearly able to understand the basis on which she has lost and the grounds of appeal amount to nothing more than a disagreement with the decision. We need not make any assumptions about what was or was not taken into account by the judge, since his process of reasoning shows that he took careful account of everything which he was said in the grounds of appeal to have overlooked.
39. The appeal to the Upper Tribunal is dismissed.
Notice of Decision
There was no legal error in the decision of the First-tier Tribunal. The Secretary of State’s appeal is therefore dismissed. The decision of the First-tier Tribunal shall stand.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 April 2025